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USCIS issues final guidance regarding Simeio Solutions decision

21 Jul 15

UNITED STATES

U.S. Citizenship and Immigration Services has released final guidance clarifying the manner in which the Administrative Appeals Office precedent decision Matter of Simeio Solutions will be implemented.

The final guidance states that as of today, July 21, if an employer’s H-1B employee moved to a new area of employment on or before April 9, 2015, the date of the decision, USCIS will generally not pursue new adverse actions (i.e., denying or revoking a petition) solely based on the employer’s failure to file a new or amended H-1B petition. However, any adverse actions taken or commenced by USCIS prior to July 21 will remain in effect. Employers may choose to file new or amended petitions for work location changes that took place on or before April 9, so long as they file by Jan. 15, 2016. USCIS will consider such petitions timely filed.

For location changes that occurred after April 9 but before Aug. 19, the guidance clarifies that employers are required to file new or amended H-1B petitions by Jan. 15, 2016. If an employer fails to file a new or amended petition by this deadline, both the employer and the H-1B employee will be out of compliance and subject to adverse action.

For changes that occur after Aug. 19, employers must file an amended or new petition before an H-1B employee may begin working at a new place of employment that is not covered by an existing, approved H-1B petition.

USCIS had previously issued draft guidance in May, stating that the decision would apply to location changes that took place prior to the Simeio Solutions decision and requiring employers to file new or amended petitions to reflect those changes by Aug. 19. USCIS invited stakeholders to comment on the draft guidance.

The final guidance released today also confirms that if an employer’s amended or new H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition if he or she is able to maintain valid nonimmigrant status there. Additionally, an employer may file another amended H-1B petition while an amended H-1B petition is pending, so long as every amended petition meets the requirements for H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.

BAL Analysis: This final guidance is welcome news for companies. However, USCIS has not eliminated an adjudicator’s ability to take adverse actions based on an employer’s failure to file a new or amended petition for worksite changes that took place prior to the Simeio Solutions decision. Please consult with your BAL professionals for advice on these issues.